JUDGMENT By the Court.—The present writ petition has been filed for quashing the order dated 31.3.2005 (Annexure 7 to the writ petition) and order dated 31.1.2005 (Annexure 5 to the writ petition) passed by respondent No. 2. Further issuing a writ in the nature of mandamus directing the respondent No. 2 not to deduct the amount of Rs. 82,147/- from the retiral benefits of the petitioner. 2. The question involved in the present writ petition for consideration by this Court is whether certain benefits like pay-scale and grade given by the respondent to the petitioner during service and amount received in lieu thereof can be recovered after the retirement or not. 3. The petitioner who was given appointment as Assistant Teacher in Government Inter College, Anjani Sen Tehari Garhwal on 24.3.1979. Subsequently, the petitioner was promoted and transferred to Government Inter College, Anpara, Mirzapur as Hindi Lecturer. In 1997, the petitioner was promoted to the post of Research Professor in the State Institute of Education and on 16.9.1997, the salary of the petitioner was fixed in scale of Rs. 2900/- in view of Government Order dated 17.9.1988. In 2001, petitioner being senior most was promoted in the higher scale and was posted as Deputy Secretary, Madhyamik Shiksha Parishad in pay scale of Rs. 8000-13500 by respondent No. 1. The petitioner retired from service on 30.11.2004. 4. After retirement from service, petitioner received a letter dated 31.1.2005 issued by the respondent No. 2 which was addressed to the respondent No. 3 by which the respondent No. 2 sought some clarification by the respondent No. 3 and has also directed to recover amount from salary of the petitioner after revising the salary. It is noteworthy to mention here that before passing the order dated 31.1.2005, no notice and opportunity or show cause was given to the petitioner. The respondent No. 3 by letter dated 7.3.2005 sent a clarification to the respondent No. 2 that objections raised are incorrect and the pay-scale given to petitioner from time to time was in accordance with law. The respondent No. 2 without considering the clarification and documents submitted by the respondent No. 3 passed an order on 31.3.2005, by which the respondent No. 2 has withhold an amount of Rs. 82,147/- from the retiral benefits of the petitioner. A copy of the same has been filed as Annexure 7 to the writ petition. The respondent No. 2 without considering the clarification and documents submitted by the respondent No. 3 passed an order on 31.3.2005, by which the respondent No. 2 has withhold an amount of Rs. 82,147/- from the retiral benefits of the petitioner. A copy of the same has been filed as Annexure 7 to the writ petition. After receiving the aforesaid order, petitioner submitted a representation to the respondent No. 2 with a request not to deduct the amount from the gratuity of the petitioner. The respondent No. 3 immediately after receiving the representation filed by the petitioner sent a letter to the respondent No. 2 on 4.7.2005 stating therein that the entire clarification sought through letter dated 31.1.2005 has already been sent and deduction from the gratuity of the petitioner is illegal and requested to release the amount. The respondent No. 2 acting in an illegal manner has withhold an amount of Rs. 82,147/-. 5. It has been submitted on behalf of the petitioner that the respondent No. 2 has got no authority to recover the amount already received by the petitioner. If the amount has been paid to the petitioner by the respondent without any misrepresentation or fraud played by the petitioner. Before passing the order of deduction no notice and opportunity was given to the petitioner, as such, order passed by the respondent No. 2 is wholly illegal, arbitrary and against the principles of natural justice. 6. The respondent No. 2 is bound by principle of promissory estoppel and cannot passed an order of recovery of amount which has already been paid to the petitioner for no fault. Aggrieved by the aforesaid order, the petitioner has filed the present writ petition. 7. Notices were issued and as the counter and rejoinder affidavits have already been exchanged, the writ petition is being disposed of with the consent of the parties. 8. A counter-affidavit has been filed on behalf of the respondents. In the counter-affidavit it has been stated that wrong fixation was done, therefore, the order has rightly been passed by the respondent No. 2 deducting the aforesaid amount. After July, 1993, on the basis of option given by the petitioner, revised pay scale has wrongly been given to the petitioner. As in view of the Government Order dated 11.2.1991, option cannot be changed. After July, 1993, on the basis of option given by the petitioner, revised pay scale has wrongly been given to the petitioner. As in view of the Government Order dated 11.2.1991, option cannot be changed. Due to this fact, there was a wrong fixation, therefore, the respondent No. 2 had passed an order deducting the amount received by the petitioner in excess. 9. We have heard Sri Sharad Kumar Pandey, learned Counsel for the petitioner and Sri R.K.Saxena, learned Standing Counsel on behalf of the respondents and have perused the record. 10. There is nothing in the impugned order or in any other order passed and placed on record to show that incorrect fixation of pay was on account of any misrepresentation or fault of the petitioner. It is now settled that if any financial benefit like increment, pay scale, revised pay scale has been provided to an employee by the employer not on account of any misrepresentation or fault of that particular employee, the amount received in lieu thereof cannot be recovered. It is clear from the record that before passing the impugned order petitioner has not been afforded an opportunity. Petitioner has already retired on 30.11.2004 and during the period of service, it was never indicated by any authority that certain benefits which have been given to the petitioner, petitioner was not entitled for the same. One thing is also clear from the record that a clarification to this effect was given by the competent authority that the pay fixation or revised pay scale given to the petitioner was in accordance with various Government orders. 11. It has been held by the Supreme Court in State of Orissa and others v. Adwait Charan Mohanty and others, 1995 Suppl (1) SCC 470, in para 14, it has been held that though the Tribunal has committed grievous and manifest error of law in not considering the cases on hand in this prospective as the employee concern remained in service and rendered the service to the State. It is directed not to recover any pay and allowances paid to them till they are made to retire pursuant to the order passed by this Court. 12. In case of Nand Kishore Sharma and others v. State of Bihar and others, 1995 Suppl (3) SCC 722, it has been held that amount already paid cannot be recovered. It is directed not to recover any pay and allowances paid to them till they are made to retire pursuant to the order passed by this Court. 12. In case of Nand Kishore Sharma and others v. State of Bihar and others, 1995 Suppl (3) SCC 722, it has been held that amount already paid cannot be recovered. In that case Apex Court was considering regarding the withdrawal of revised pay scale and recovery of arrears. The State of Bihar consequent to the report of the Pay Commission recommended revised pay scale for Plant Protection Supervisor which was accepted and the department enforcing the revised pay scale paying the arrears in lump sum in the year 1981. The State Government subsequently directing the recovery of excess payment. Apex Court held that amount already received cannot be recovered. 13. In State of Karnataka and another v. Mangalore University Non-Teaching Employees and others, (2002) 3 SCC 302 , the Apex Court was considering the entitlement of house rent allowances and subsequently it was found that they were not entitled for the same but in that circumstances also the Apex Court has held that "in such circumstances, since the employees had drawn the allowances on the basis of financial sanction of the competent authority that is Government and had incorporated additional expenditure towards house rent, held, the employees should not be punished for no fault of theirs, hence cannot be any recovery." 14. Similar view has been taken in 1995 SCC (L & S) 522, Union of India v. Sita Ram Deer; 1994 SCC (L&S) 1445, Nand Kishrore Sharma v. State of Haryana; 1996 SCC (L&S) 124, that if additional payment has been made to an employee for no fault of theirs, they should not be penalized for this. 15. In Sahib Ram v. State of Haryana and others, 1995 Suppl (1) SCC 18. it has been held in para 5 that the Principal in the said case has erred in granting relaxation of the educational qualification and has awarded revised pay scale. Since it was not made on any misrepresentation made by the petitioner, no recovery can be made from the petitioner. 16. it has been held in para 5 that the Principal in the said case has erred in granting relaxation of the educational qualification and has awarded revised pay scale. Since it was not made on any misrepresentation made by the petitioner, no recovery can be made from the petitioner. 16. A Division Bench of this Court in case of State of U.P. and others v. State Public Services Tribunal, (2004) 1 UPLBEC 127 , has taken a view that where incumbent is not at all responsible for such wrong fixation, by no stretch of imagination such direction can be issued for recovery of the amount. 17. In Harish Chand Srivastava v. State of U.P., (1996) 3 UPLBEC 1840, it has been held by the Division Bench that if certain benefits have been given to a person not on the basis of misrepresentation or misappropriation of the person concerned and in lieu thereof if some monetary benefit has been given that cannot be recovered. 18. In the present case also on the admitted fact on record, petitioner cannot be said to be on fault for fixation of his pay in the pay as Deputy Secretary (Madhyamik Shiksha Parishad) U.P. Allahabad as pay scale of Rs. 8000-13500. 19. The other relevant factor for consideration before this Court is that whether the deduction order can be passed without any notice and opportunity to the petitioner. The State respondent has not brought any thing from record before this Court that before passing the order impugned by the respondent No. 2, the petitioner was afforded any opportunity or show cause notice was given. In view of this matter also, the order passed by the respondents is liable to be quashed only on the ground of non-observance of principles of natural justice. 20. In the facts and circumstances of the case, the writ petition is allowed. The impugned orders dated 31.1.2005 and 31.3.2005 (Annexures 5 and 7 to the writ petition) are set aside. Further direction is issued to the respondent No. 2 that no recovery will be made on the ground of the impugned orders. A further direction is issued to the respondent No. 2 to fix the pension of the petitioner on the basis of last pay drawn within a period of three months from the date of production of the certified copy of this order. 21. No order as to costs. ————